new residence requirement

[gqx]

Guys,

I am eligible to apply on Feb 1, do you think new residence requirement （4/6） will come into force before that time? I am concerned.

Thanks

 

[MUFC]

Nobody can answer that question, because they like to inform the public in the last moment, sometimes they announce the changes even retroactively.

That's is the way they work... no transparency.

 

[aed]

Guys,

I am eligible to apply on Feb 1, do you think new residence requirement （4/6） will come into force before that time? I am concerned.

Thanks

At this moment it's supposed to happen in the summer of 2015. But again, CIC can alwayss change their mind. My gut feeling tells me though, it won't be sooner than summer. Good luck.

 

[CanadianCountry]

Somebody posted a link of the upcoming changes in 2015. There was a mention that the citizenship revocation provisions will come into force before the residence provisions.

So it seems this revocation provision is more of a priority for CIC. So keep a lookout on these provisions.

Also the revocation provision is held up in legal process at the Supreme Court. Don't know if govt can go around the SC's back and implement this without the courts approval.

Just my 2cents.

At this moment it's supposed to happen in the summer of 2015. But again, CIC can alwayss change their mind. My gut feeling tells me though, it won't be sooner than summer. Good luck.

 

[aed]

Somebody posted a link of the upcoming changes in 2015. There was a mention that the citizenship revocation provisions will come into force before the residence provisions.

So it seems this revocation provision is more of a priority for CIC. So keep a lookout on these provisions.

Also the revocation provision is held up in legal process at the Supreme Court. Don't know if govt can go around the SC's back and implement this without the courts approval.

Just my 2cents.

Residence provision won't be affected by SC ruling, so until CIC posts another date, no one knows exactly when it will happen. CIC talks about summer next year.

 

[CanadianCountry]

Yes they are not related unless the govt gets bent upon doing what they posted on the CIC news site. Again what they had posted is, the revocation provisions will come into force EARLIER than residence requirement.

CIC has all the powers to backtrack and do whatever and whenever they want.

Residence provision won't be affected by SC ruling, so until CIC posts another date, no one knows exactly when it will happen. CIC talks about summer next year.

 

[aed]

Yes they are not related unless the govt gets bent upon doing what they posted on the CIC news site. Again what they had posted is, the revocation provisions will come into force EARLIER than residence requirement.

CIC has all the powers to backtrack and do whatever and whenever they want.

My impression is they want to have it done ASAP. If the SC case drags, the residency provision will happen first. Of course, they can change their minds 1000 times till then. For now, it's summer. Also, the SC case deals only with a revocation of citizenship of born citizens, not naturalized. Now, that's creating 2 tiers of citizens. But I get it, Rocco needs more media coverage again. Just my 2 cents.

 

[dpenabill]

Short answer:

Overall, an application submitted in February 2015 will most likely be processed based on the current residency requirement, 3/4 years resident-in-Canada.

Best to apply with at least a week or ten day margin over the minimum 1095 days actual physical presence.

Applications made as of the day prior to the new residency requirement coming into force, will be processed based on the 3/4 requirement.

To be "made" the application must be signed, complete, and actually received by CIC by the day previous to the coming into force date. Incomplete applications returned to applicant are not made until the complete application is submitted, regardless of the date signed.

We do not know when the 4/6 requirement will come into force. It is possible that the new residency requirements could come into force by, say, February 1, 2015. But that appears highly unlikely. Even March 1 seems quite unlikely. After that, though, the risk goes up.

A lot of the anxiety can be eliminated if the government will only announce the date at least a month in advance. That would be the fair thing for this government to do, to give at least a full month's notice in advance. Does not affect me (I became a citizen earlier this year), but I prefer my government to be a fair and just government, so I hope there is a reasonable amount of notice. Unfortunately, however, given this government's past behavior, there is no counting on that happening.




Some much longer, related observations:

Section 46 of Bill C-24 prescribes the dates that the various provisions of the Bill "come into force."

There are four subsections, grouping particular provisions to come into force, two of which reference sections of Bill C-24 already in force, two referencing groups yet to come into force.

The provisions prescribing amendments to sections of the Citizenship Act governing the residency requirement (amendments to section 5 of the Citizenship Act, as prescribed in section 3 of Bill C-24) are grouped in the same subsection as the provisions prescribing the replacement of the section of the Citizenship Act governing grounds for revocation of citizenship (replacing section 10 of the Citizenship Act, as prescribed in section 8 of Bill C-24). This is subsection 46(2) of Bill C-24.

My strong impression is that there will be one order by the Governor in Council fixing the date the provisions in Section 46(2) come into force. That is, that the amendments to the residency requirement provisions for a grant of citizenship will come into force on the same date as the new revocation provisions.

The only prescribed limitation on that date is that it could not be made earlier than one day after the day, as ordered by the Governor in Council, the provisions in subsection 46(1) came into force. That happened August 1st, so that prerequisite is satisfied.

In the meantime, earlier this year (late fall as I recall), the Gazette published official notice for a comment period regarding proposals to amend the regulations governing the revocation of citizenship procedures. So that process is formally underway, indicating the government is moving ahead at due speed to get these provisions implemented.




Galati constitutional challenge:

I am quite confident that there is no Court stay against the coming into force of the provisions about revocation of citizenship for certain dual citizens.

There is NO Supreme Court case as yet. Indeed, so far as I have seen Justice Rennie has yet to rule on the Government's motion to dismiss Galati's challenge outright.

Reminder: Justice Rennie is a Federal Court justice . . . thus this case is not even in the Court of Appeals, let alone the Supreme Court.

The Government's argument as to why Galati's case should be thrown out summarily is precisely that these provisions are not yet in force, the suit is untimely, the issue is not ripe for the Federal Court to decide. The other prong of the Government's argument is essentially a standing issue, that any challenge should only be made only on behalf of an individual actually affected by the statutory provision.

I do not know how Justice Rennie will decide the motion; it may be worth noting, however, that Justice Rennie was the Justice who, soon after being appointed to the Bench by PM Harper a few years ago, almost immediately took a strict position on the current residency requirement in the Citizenship Act and ruled that the only correct standard is the actual physical presence test, going against three decades of case law allowing qualitative tests to be applied . . . in other words, Justice Rennie clearly comes from a school of thought which appears to be well within the PM's preferences.

As has been well noted in the forum, but as a reminder, the Galati challenge is not about the new residency requirements in the amended version of what will be, when in force, Section 5(1) of the Citizenship Act.

However, the challenge is not just about citizens born in Canada, but about dual citizens, whether they are a dual citizen by birth or as a result of naturalization.



Overall:

In any event, both the provisions governing the new residency requirement (including intent to continue residing in Canada) and the new grounds for revoking citizenship, will most likely come into force on the same date.

This is coming in 2015. And while we do not know for sure when, it is almost certain it will be by the 1st of October at the very latest, most likely by July 1st, and possibly earlier than that.

As of now, Galati's lawsuit does not preclude the coming into force of any provisions in Bill C-24. If the challenge is successful, it will only have an impact on the specific provisions governing the revocation of citizenship for dual citizens.

It is very unlikely that an application made by February 2015 will be affected by Bill C-24, or subject to the new residency requirement. Possible, but not at all likely.

The risk goes up each succeeding month. By mid-March, PRs on the cusp will want to seriously consider, if they meet the current residency requirement with a margin of at least a few days, getting the application sent off in time to arrive at CIC in Sydney by the 28th of the month, next to last day of the month at the latest, just in case the Governor in Council orders the provisions referenced in section 46(2) of Bill C-24 to come into force on the last day of the month or the first day of the next month.

For some it will be very, very close as the end of a respective month approaches, and some may be faced with deciding whether to apply based on exactly 1095 or 1096 days. Very tough decision for those who approach this threshold in March through May, given that it would be much better to have at least ten days margin or so, given the risk that waiting into the next month might miss beating the coming into force date for the new residency requirement. By June the pendulum swings heavily toward applying before the end of the month even if with a very minimal margin, the risk the change is coming being high.

Again, a lot of the anxiety can be eliminated if the government will only announce the date in advance. Cannot count on that happening.

 

[aed]

However, the challenge is not just about citizens born in Canada, but about dual citizens, whether they are a dual citizen by birth or as a result of naturalization.

Can you provide a source for that statement? Last time I read an interview with Rocco he was very clear on that. He knew he might not stand a chance, hence his claim wouldn't encompass naturalized citizens. Has anything changed? Thanks.

 

[CanadianCountry]

I thought the challenge only entailed the protection on jus soli rights on Canadian born citizens, who also have dual citizenship from descendency.

Can you provide a source for that statement? Last time I read an interview with Rocco he was very clear on that. He knew he might not stand a chance, hence his claim wouldn't encompass naturalized citizens. Has anything changed? Thanks.

 

[dpenabill]

Regarding the substantive elements of the Galati challenge:

Acknowledging that this tangent goes even further adrift the topic, the following explains why the Galati challenge is about dual citizens, regardless of how Canadian citizenship was obtained (thus about those who are dual citizens and who are natural born or naturalized Canadian citizens).

The core argument raised in the preliminary filing (notice of intent to make an application) by Galati on June 25th, in particular, specifically bases the challenge on the grounds that Parliament does not have constitutional authority to pass a law which revokes citizenship by birth in Canada (on Canadian soil). This document is readily available on the internet. This is what many refer to as the jus soli rights ground.

I have not seen the actual application made to the Federal Court. My observations are also based on news media accounts of the challenge, and particularly so reports of arguments made at the hearing in October (there are a number of media accounts available online, including the Toronto Star), at which Galati is reported to have argued that "Once you are a citizen, you are a citizen," and the "issue is whether it can be taken away without your consent with the natural-born and naturalized citizens," and the "government does not have the authority to legislate on this issue."

The news media get a lot wrong. And it is possible these quotes are out of context, and perhaps Galati was actually distinguishing natural-born and naturalized citizens, from the so-called jus soli rights of persons born on Canadian soil.

But at least a couple of the media sources (including 570News) also reported that Galati specifically argued that people born in Canada are citizens, "period," and once a citizen has been naturalized they have the same rights as someone who is natural born, and unless there has been fraud in the naturalization process, the government does not have the legal authority to "yank back" that citizenship.

Thus, most accounts of the arguments made at the hearing itself indicate that the challenge is, as I said, not just about citizens born in Canada, but about dual citizens, whether they are a dual citizen by birth or as a result of naturalization.



Some additional observations, stretching what I know and understand, and explaining (rather imperfectly I am afraid) why the jus soli nature of the rights of a natural born citizen are also the rights of a naturalized citizen:

Again, it is possible the media reports got the arguments wrong. As noted, the media often does get this sort of thing very wrong. (Even if the reporter is law trained, this stuff is a few pay grades above understanding basic laws.)

But, the reported arguments made by Paul Slansky and Rocco Galati at the hearing are consistent with the position argued by the Canadian Bar Association (which did not distinguish between dual citizens whose Canadian citizenship was by birth or naturalization) and the Brief by the Canadian Association of Refugee Lawyers.

And as best I can sort out the constitutional elements, there is no distinction in the rights of a natural born citizen versus the rights of a naturalized citizen.

I am not a Canadian lawyer, let alone a Canadian constitutional lawyer, but my understanding is that the emphasis on jus soli rights in the preliminary filing (notice of intent to make an application) by Galati is that Parliament does not have constitutional authority to legislate the jus soli rights of citizenship. Those who are a Canadian citizen by birth clearly have such rights. There is no constitutional difference in the rights a natural born citizen has and the rights a naturalized has. Therefore, naturalized citizens have equal jus soli rights which Parliament does not have the authority to legislate the revocation of.

That is, the Galati emphasis on jus soli rights is not about a difference in the rights of those who are citizens because they were born on Canadian soil, in contrast to those who are naturalized citizens, but rather the opposite, that all citizens have the same rights of citizenship, and the rights of citizenship are inalienable, protected by the Constitution.

That is, the once-you-are-a-citizen-you-are-a-citizen argument applies to all citizens.



Note: Revocation of citizenship for fraud is a different story, because that is based on the principle that citizenship obtained by fraud was never legally effective, no right of citizenship actually obtained.

 

[dpenabill]

I should offer a note regarding the posture of Justice Rennie: I insinuate, in my earlier post, that Justice Rennie is a Harper appointee likely to do the Prime Minister's bidding. There is little doubt about Justice Rennie's very strict approach to interpreting the Citizenship Act for example, breaking a tradition of well-established law which governed citizenship grant applications for more than three decades (albeit rife with confusion and some outright inherent conflicts) .

But, some of Justice Rennie's IRPA decisions, including some regarding refugees in particular, illustrate a willingness to rule against this government as well.

And, some of the media reports about the October hearing suggest that Justice Rennie did seem to express concern about the argument that the revocation provisions will create two classes of citizens.

It is way, way too easy, though, to read too much into what a judge asks lawyers in a hearing.

I am surprised that it has taken Justice Rennie this long to issue a decision. (Perhaps he has and it has not been reported by the media.)

 

[bkara]

Whatever it takes,I would like to challenge the 'disregarding pre-pr days ' rule.
When you work hard for something and somebody comes and says 'I am taking that away from you,now go away!' It is very disturbing.We have signed a lot of papers with CIC With dates on them.They are like contracts between us and CIC.This is sort of a bullying.

I would make different plans for my future if I had known this process would take 6+years.

 

[CanadianCountry]

At least the federal court site has no decision on this case.

Thanks for clarification!

I should offer a note regarding the posture of Justice Rennie: I insinuate, in my earlier post, that Justice Rennie is a Harper appointee likely to do the Prime Minister's bidding. There is little doubt about Justice Rennie's very strict approach to interpreting the Citizenship Act for example, breaking a tradition of well-established law which governed citizenship grant applications for more than three decades (albeit rife with confusion and some outright inherent conflicts) .

But, some of Justice Rennie's IRPA decisions, including some regarding refugees in particular, illustrate a willingness to rule against this government as well.

And, some of the media reports about the October hearing suggest that Justice Rennie did seem to express concern about the argument that the revocation provisions will create two classes of citizens.

It is way, way too easy, though, to read too much into what a judge asks lawyers in a hearing.

I am surprised that it has taken Justice Rennie this long to issue a decision. (Perhaps he has and it has not been reported by the media.)